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Ginsberg Law Offices

Month: March 2007

Perceptive Judge Overcomes Poorly Prepared Vocational Witness

Yesterday, I appeared with a client at a video hearing with a judge from West Virginia.  This was actually our second hearing – the first hearing was held in August, 2006.  My client applied for benefits in July, 2003, which means that his case has been pending over 3 1/2 years.  During that time, my client and his wife had to file bankruptcy and he has exhausted all of his pension and 401(k) money.

My client worked for a large airline for almost 20 years and back in 2001, he began experiencing severe pain (neuropathy) in his feet and legs.  He subsequently fell and broke his left hip and he currently needs a knee replacement.  He is also severely depressed and basically spends his days trying to find a comfortable position.

At the initial hearing, the judge was not convinced that my client’s physical condition was severe enough to justify benefits and he was concerned that there was not enough documentation about my client’s mental health condition.  Therefore, following the hearing, the judge referred my client out for a psychological evaluation.

My client attended the psychological evaluation and in early December, the judge sent me a copy of the psychologist’s report.   As discussed extensively on this blog, the main issue in any Social Security case relates to a claimaint’s capacity to perform work.  The assessment completed by the consultative psychologist proved to be very relevant evidence.

At this, the second hearing, the judge took no testimony from my client, but he did ask several questions of the vocational expert witness (VE).  The first question – if the claimant’s psychological profile is as set out in the psychologist’s report, could he perform any type of work.  Let me interject here to say that 99% of vocational witnesses would answer “no,” because (1) the “poor” in “dealing with work stresses” and the cumulative effect of four “fairs” in other vocationally significant categories would make any kind of vocational adjustment pretty much impossible.

This VE, however, testified that 20% of sedentary jobs would remain available.  Before I had a chance to cross-examine (I would have asked him about the cumulative effect of the “fairs” and about his understanding of the word “poor”), the judge gave two more hypothetical questions, each with significant limitations.  It was fairly clear that the judge saw this as a case he was going to pay, but he needed acceptable vocational testimony.

The judge eventually got the testimony he wanted and he will pay this case.  This is a good example of how a knowledgeable judge was able to get past the inexperience of a new or overly conservative vocational witness.  This case also demonstrates how much authority a Social Security judge has in deciding which way he will take a case.

 

What are the “Grid” Rules and Where Can I Find Them?

Jonathan, what are the grid rules you mentioned? (why is your case easier to win if you are over 50)?
–Janet

Jonathan Ginsberg responds: The “grids” are rules that can make it easier for you to be found disabled. Social Security recognizes that if you are over 50, have a limited education and have limited job skills, you will have a more difficult time re-entering the work force. Job possibilities become even harder at 55 and even more so at 60.

If you put these factors (age, education ,transferability of skills, work capacity) into a table, you can construct a grid of intersecting boxes.  Thus – the “grids.”  The official name for the grids is the “medical vocational guidelines.”

Under the grids, you can be found disabled even if you can still perform certain types of work. By contrast, cliamants under the age of 50 generally would not be found disabled if they could do any work.

The grids are a series of tables that consider these factors. You can look at the grids by clicking on the link.

Example: Under grid rule 201.04, a 55 year old individual who can perform sedentary (sit down) work who is a high school graduate, with an unskilled work background and who does not have the skills to perform semi-skilled or skilled work would be found disabled under the grids.

Note that the grid rules only apply if your medical condition limits your physical capacity for work.  You cannot “grid out” for a mental health problem.

54 Year Old With Multiple Medical Problems – What Strategy Will Work Best at a Hearing

Hi, i am waiting to see a judge ,my lawyer say’s it should be between now an aujust which would be 16 mths.since i filed appeal. I am 53 ,wil be 54 in oct.I Have type 2 diabetes insulin dependent twice daily,high blood pressure,diabetic neuropathy,osteoarthritis in knees an hands,herniated dics in neck that causes both arms to go numb at anytime.I have medical records to back -up all conditions.My meds are humlin-r an humlin-n insulin twice aday,lisinopril 20mg,1 tablet once daily.My pain management doc. treats me for neuropathy and herniated dics,an arthritis with,5mgs methadone 1tablet 4xaday an neurotin 600mgs 4xaday.I will be treated by him from know on.He supports my claim.Wanted to know do i have a good chance at getting my dis.I have excellent work history for the last 8 yrs. says my lawyer.My family doc. knows i am filing dis . but do not know if her office will let her write a letter,her pa asked me was i filing disability an she was in the exam room also, don’t know what that ment.At any rate my pain management doctor will support me.Are my chances good?

Jonathan Ginsberg responds: Based on what you have written, I think you have a strong case.  What I would want to know relates to the specific symptoms that arise from your varoius medical conditions.  Ultimately the issue in your case will be: which condition or conditions creates limitations that would most impact you in a simple, sit-down type of job.

For example, your diabetes may create periodic vision problems and periodic numbness in your hands and feet.  Your herniated discs may limit you to four hours total sitting during a day and might require you to lie down for 30 minutes every three hours.  Your pain and/or your medications may cause a significant interference with your ability to concentrate. 

Hopefully, you can see that I am focusing on limitations that would impact you if you tried to work a simple job.  Remember, Social Security is mainly about work capacity.

Best of luck to you.

[tags] case strategy, herniated discs, diabetes, Social Security disability, SSDI [/tags]

 

Tax Treatment of SSDI Benefits and Lump Sum Payments

With delays in the Social Security decision making process reaching 3 years, those fortunate claimants who are approved will end up with large lump sum payments.  I have seen several instances where the lump sum benefit check exceeded $50,000.

A question I hear more and more has to do with the tax implications of lump sum Social Security payments.  I found a helpful article at the MarketWatch web site that gives a nice overview of Social Security disability benefits and taxes.  This article was written by Eva Rosenberg a/k/a TaxMama.

Depending upon your household income, some of your SSDI payments may be treated as income for tax purposes.  In 2007, for a husband and wife filing jointly, if you joint income (including your SSDI payment) falls below $32,000, 50% of your SSDI benefit is taxable.  If you income exceeds $44,000 annually, 85% of your SSDI benefit is taxable.

Your lump sum SSDI payment is eligible for special treatment by the IRS – there are rules that allow you to spread out the taxes over several years.  Rosenberg notes that the calculations pursuant to IRS Publication 915 can be complex, so you may want to engage the services of a CPA or enrolled agent to help you.

For more information check out Rosenberg’s TaxMama.com site, which offers a great deal of useful and easy to understand tax help.

[tags] tax treatment of SSDI benefits, tax treatment of Social Security lump sum payments, TaxMama, Eva Rosenberg [/tags]

Pre-hearing Conference to Expedite Hearing Decision

I have a question. My attorney’s paralegal called me last week and told me that my attorney and an administrative law judge will meet to discuss my case (without me) in an effort to make a decision quicker. She said that if the law judge ruled in favor of my case, that would be it. She said, if he or she ruled against me we would wait for our hearing as we have been waiting for the past two years. Does this make sense? Have you heard of this? thank you.

–Sheila

Jonathan Ginsberg responds:  Sheila, what you are describing is something called a "pre-hearing conference."   Pre-hearing conferences are a little unusual in Social Security cases, but certainly not improper.  A pre-hearing conference can be requested by a lawyer to speed up the process or it can be requested by the judge.   Sometimes judges will flag certain cases for pre-hearing because they look strong enough to be granted "on-the-record" without the need for a hearing.

In my experience, judges will use a pre-hearing conference to approve a case or to narrow the issues.  For example, the judge may be prepared to approve your case, but he may want to change the onset date for your disability.

Generally, it is good news if the judge wants to hold a pre-hearing conference.  Your lawyer can tell you what happened and hopefully, you will be on the road to an earlier approval.

[tags] pre-hearing conference, administrative law judge, on-the-record decision, Social Security, Social Security disability, SSI [/tags]

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